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December 13, 2017

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Works Not Covered By Copyright

You may want to use or incorporate someone else's work into your
own. While the works of others may be protected by copyright, there are
a class of works that fall outside the scope of copyright law. The
following categories of work are not eligible for copyright protection,
regardless of when they were created and whether or not they bear a
copyright notice.

Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.

Facts

You can use facts in your online work without the fear of liability
because facts are not protected under copyright law. As we explain in
the section on Copyrightable Subject Matter,
copyright protection applies to "original works of authorship."
Although the level of creativity required to be "original" is extremely
low, facts do not have the requisite level of creativity. For example,
baseball scores, telephone numbers, dates of birth, and the number of
people at a protest are noncopyrightable facts.

However, there may be situations in which a compilation
of facts may be protected if the creator of the original publication
selected, coordinated, or arranged the facts in an original way. For
example, a sports almanac may arrange baseball scores in a creative
way, a genealogy chart may arrange birth dates in an original way, or a
cookbook may arrange ingredients in a creative and original way as part
of its recipes. In each of those instances, the creator of the work
would have a copyright in the creative arrangement of the facts, but
not the facts themselves.

Works Created by the United States Government

You can use any work of the United States Government because
copyright law does not cover such works. Works of the United States
Government include:

federal judicial decisions

federal statutes

speeches of federal government officials given in the course of their employment

federal government press releases

federal government reports (such as census reports)

However, note that copyright law may protect works created by others
that the United States Government receives by assignment, bequest, or
otherwise.

While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in
Can States Copyright Their Statutes?
for more information. However, be aware that Oregon recently asserted
copyright ownership "in the arrangement and subject-matter compilation
of Oregon statutory law, the prefatory and explanatory notes, the
leadlines and numbering for each statutory section, the tables, index
and annotations and such other incidents as are the work product of the
Committee in the compilation and publication of Oregon law." See our
blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.

Works Not Fixed in a Tangible Form of Expression

Copyright protection only applies to "original works of authorship"
that are "fixed in a tangible medium of expression." Consequently, if
you attend an improvisational speech that has not been notated or
recorded, you may publish the speech in your online work without fear
of liability. (However, you should cite the speech in order to avoid
the taint of plagiarism.)

Ideas, concepts, or principles

Copyright does not cover ideas, concepts, and principles themselves,
only the form in which they are expressed. For instance, merely coming
up with an idea does not make you the copyright owner because you
haven't actually expressed anything. You become the copyright owner
only when you put that idea into "expression" through words (e.g., in a
blog post) or other tangible form (e.g., in a video, a photograph, or a
podcast).

For example, Einstein's theory of special relativity is not
copyrightable because it is an idea (or concept or principle). However,
Einstein's article, "On the Electrodynamics of Moving Bodies," in which
he explained and expressed the theory, was copyrightable.

If you come across an idea/concept/principle, you can use it
in your online work with out fear of liability as long as you do not
use the form in which it is expressed (which may be copyrightable).
However, you should consider citing to the source in order to avoid a
claim of plagiarism.

Words, Phrases, or Familiar Symbols

In general, copyright does not protect individual words, short
phrases, and slogans; familiar symbols or designs; or mere variations
of typographic ornamentation, lettering, or coloring; mere listings of
ingredients or contents. (However, copyright protection may be
available, if the artwork of the symbol or design contains sufficient
creativity.)

While copyright protection may not apply, be aware that
trademark law protects certain words, short phrases, slogans, symbols,
and designs. For example, trademark law protects the word "Apple," the
slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark
section for more information on using a trademark protected word,
phrase, symbol, or other indicator that identifies the source or
sponsorship of goods or services.

Works in the Public Domain

You can use any work in the public domain without obtaining
permission of the copyright owner. A work falls into the public domain
when the copyright term expires or, in the case of works published
between 1923 and 1989, if the work lost copyright protection because
the copyright owner neglected to take the necessary steps under
then-applicable copyright law. Additionally, a copyright owner can
directly dedicate a work to the public domain. This is done expressly,
through language such as "Everything on this site to which we own
copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.

Determining whether any particular work is in the public domain
is a complex task, and the answer often depends upon when the work was
published, whether it was published with notice, and whether the
copyright holder subsequently registered the work. However, there are
some rules of thumb that will help you with this analysis:

First, any work that was published before 1923 is in the public domain.

Second, any work published without a copyright notice between 1923 and 1977 is in the public domain.

Third, works created after 1989 generally are not in the
public domain, regardless of notice or registration, unless the work
has been dedicated to the public domain.

If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart
that shows when different types of works (published, unpublished,
published outside the US) will fall into the public domain based on an
analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.

A word of caution about using public domain works. You should
check whether a public domain work has already been incorporated into
another work. Although the public domain portions of that new work are
not protected, the author's new expressive content and selection and
arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:

Photographs of the Mona Lisa that are designed to
precisely replicate the original work will likely not enjoy copyright
protection because they are intended to capture Leonardo Da Vinci's
expression of the painting as closely as possible. However, a
photograph of a sculpture that is in the public domain may be protected
by copyright because of the skill and creativity involved in composing
the photograph.

The text of a book in the public domain may be used freely,
but a current publisher of the book may have copyright rights to the
expressive elements of a recently published edition (e.g. the new
layout, cover art, etc.).

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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